Com. v. Owens

• Citation: 198 Ky. 655,249 S.W. 792
• Parties: COMMONWEALTH v. OWENS ET AL.
• Decision Date: 17 April 1923
• Court: Kentucky Court of Appeals

249 S.W. 792

198 Ky. 655

COMMONWEALTH v. OWENS ET AL.

Court of Appeals of Kentucky.

April 17, 1923

Appeal from Circuit Court, Ballard County.

Mrs Dick Owens and another were indicted of involuntary manslaughter. From a judgment sustaining a demurrer to the indictment and dismissing the prosecution, the Commonwealth appeals. Affirmed.

Charles I. Dawson, Atty. Gen., T. B. McGregor, Asst. Atty Gen., and Flavious B. Martin, of Mayfield, for the Commonwealth.

W. A Anderson, of Wickliffe, for appellees.

SAMPSON C.J.

It is defectively alleged in the indictment that Mrs. Dan Browne who was afflicted with a serious heart disease, was so terrified, agitated, excited, angered, and shocked by the threats, words, and conduct of appellees, Mrs. Owens and her daughter, Mrs. Evans, that she swooned and shortly thereafter died. The indictment attempted to accuse appellees of the crime of involuntary manslaughter, but the trial court held it bad on demurrer and dismissed the prosecution. The commonwealth appeals.

We have defined "involuntary manslaughter" as the killing of one by another in doing some unlawful act not amounting to a felony nor likely to endanger human life and without intention to kill; and manslaughter may result when one kills another while doing a lawful act in an unlawful manner. Commonwealth v. I. C. R. R. Co., 152 Ky. 320, 153 S.W. 459, 45 L.R.A. (N. S.) 344, Ann.Cas. 1915B, 617; Maulding v. Commonwealth, 172 Ky. 371, 189 S.W. 251; Commonwealth v. Couch, 106 S.W. 830, 32 Ky. Law Rep. 638, 16 L.R.A. (N. S.) 327; Westrup v. Commonwealth, 123 Ky. 95, 93 S.W. 646, 29 Ky. Law Rep. 519, 6 L.R.A. (N. S.) 685.

In considering cases such as is attempted to be presented by the indictment in this case, the author of R.C.L. vol. 13, p. 846, says:

"In the early history of the common law a homicide, to be criminal, must have resulted from corporal injury; fright, fear, nervous shock, or producing mental disturbances, it was said, could never be the basis of a prosecution for homicide. This rule appears, however, to have been gradually modified and greatly relaxed in modern times."

The same author, on page 748 of the same volume, says:

"Under the rule of the early common law, to constitute a culpable homicide, the cause of death must have been corporal, not nervous or emotional. Accordingly, if a person, by stimulating the imagination of another or by illusage, puts him in such an intense emotional state of grief, fear, or what not, that death results, the killing is not recognized by the law as a foundation of criminal responsibility, and an examination of the ancient English authorities fully corroborates and establishes this to have been the early English rule. This rule appears, however, to have been gradually modified and greatly relaxed in modern times by the English courts. In America modern authority is divided. Some courts adhere to the early rule, whereas others have reached the conclusion that it would be unsafe, unreasonable, and often unjust for a court to hold as a matter of law that under no state of fact should a prosecution for manslaughter be sustained where death appears to have been caused by fright, fear, or terror alone, even though no hostile demonstration or overt act was directed at the person of the deceased."

See, also, 29 Corpus Juris, p. 1148, etc.

The accusatory part of the indictment, which is written on a form, reads:

"The grand jurors of the county of Ballard, in the name and by the authority of the commonwealth of Kentucky, accuse Mrs. Dick Owens and Mrs. Mittie May (Owens) Evans involuntary manslaughter by unlawfully going to the home of Mrs. Dan Browne, a woman seriously afflicted with heart trouble, and raising a racket, fuss, and an altercation with the said Mrs. Dan Browne, and causing her to become greatly agitated and excited, and from which excitement the said Mrs. Dan Browne did die therefrom, and her serious condition was known to them at the time."

While this accusation is subject to criticism for prolixity, it perhaps is sufficient to inform the defendants of the nature of the charge for which they are being prosecuted. It should have read:

"The grand jury of Ballard county, in the name and by the authority of the commonwealth of Kentucky, accuse Mrs. Dick Owens and Mrs. Mittie May Owens Evans of the crime of involuntary manslaughter."

The specifications of the indictment read:

"The said Mrs. Dick Owens and Mrs. Mittie May Owens Evans in the said county of Ballard, on the 8th day of September, 1922, and before the finding of this indictment, did unlawfully, feloniously, willfully, and wantonly go to and upon and to the home of Mrs. Dan Browne, a woman who at the time and for more than two years before was seriously afflicted with heart trouble and whose condition at the time was known by Mrs. Dick Owens and Mrs. Mittie May Owens Evans, and there willfully and maliciously and without right, and while trespassing upon the property of Dan Browne, the husband of Mrs. Dan Browne, and without the knowledge or consent, and without being invited on the property of the said Dan Browne or Mrs. Dan Browne, and while the said Mrs. Dan Browne was suffering with a serious affliction of heart trouble, raised a racket or fuss or altercation with the said Mrs. Dan Browne and caused her to become greatly excited and agitated, and from which excitement and agitation the said Mrs. Dan Browne did then and there collapse and die within a few hours thereafter."

On motion of counsel for appellees the commonwealth was required to and did file a bill of particulars in which it set forth all the facts in relation to the altercation which is alleged to have brought about the death of Mrs. Browne. It is stated in brief of counsel that the trial court, in sustaining the demurrer to the indictment, acted upon the theory that the crime of manslaughter, whether voluntary or involuntary cannot be committed by merely putting one...